Bartlett v. Department of the Treasury

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Kenneth F. Ripple* and Rogeriee Thompson, Appellate Judge. Published. * Of the Seventh Circuit, sitting by designation. [13-1379]

Case: 13-1379

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Date Filed: 04/07/2014

Entry ID: 5813607

United States Court of Appeals
For the First Circuit
No. 13-1379
TRACY BARTLETT,
Plaintiff, Appellant,
v.
DEPARTMENT OF THE TREASURY (INTERNAL REVENUE SERVICE),
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Howard, Ripple* and Thompson,
Circuit Judges.

Thomas J. Gleason, with whom Gleason Law Offices, P.C., was on
brief for appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.

April 4, 2014

*

Of the Seventh Circuit, sitting by designation.

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RIPPLE, Circuit Judge.

Date Filed: 04/07/2014

Entry ID: 5813607

Tracy Bartlett filed a one-count

complaint against her former employer, the Internal Revenue Service
(“IRS”), in which she alleged that she had been constructively
discharged in violation of the Rehabilitation Act, 29 U.S.C. § 701
et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq.

The IRS moved to dismiss the complaint on the

ground

Bartlett

that

Ms.

had

not

lodged

her

administrative

complaint within forty-five days of the incident, as dictated by
regulation.

Ms. Bartlett urged, however, that the doctrine of

equitable tolling applied because she was not apprised of the
regulatory deadline and because she was suffering from a mental
illness.

The parties briefed the motion and also submitted

additional documentation in support of their respective positions.
The district court granted the IRS’s motion to dismiss, and
Ms. Bartlett timely appealed.

Because Ms. Bartlett has not

demonstrated that her circumstances warrant equitable tolling, we
affirm the judgment of the district court.

I
BACKGROUND
Ms. Bartlett was a long-time employee of the IRS who, in
2009, was absent periodically from work due to her diagnosis with,

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and

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treatment

for,

severe

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depression.1

On

April

Entry ID: 5813607

22,

2010,

Ms. Bartlett was separated from her employment as a result of her
inability to return to the workplace.
Following her separation from the IRS, Ms. Bartlett filed
a one-count complaint in district court, in which she alleged that
she had been constructively discharged on account of her disability
in violation of the Rehabilitation Act and the ADA.
responded

by

filing

a

motion

to

dismiss

on

the

The IRS

ground

that

Ms. Bartlett had failed to contact an Equal Employment Opportunity
(“EEO”)

Counselor

within

forty-five

days

of

her

allegedly

discriminatory separation, as required by 29 C.F.R. § 1614.105(a)
(2013).2

In its motion, the IRS also noted that, although the

1

Because Ms. Bartlett’s action was decided on a motion to
dismiss, “we accept as true all well-pleaded facts alleged in the
complaint and draw all reasonable inferences therefrom in the
pleader’s favor.” Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st
Cir. 2011).
2

29 C.F.R. § 1614.105(a) (2013) provides:
(a) Aggrieved persons who believe they
have been discriminated against on the basis
of race, color, religion, sex, national
origin,
age,
disability,
or
genetic
information must consult a Counselor prior to
filing a complaint in order to try to
informally resolve the matter.
(1)
An
aggrieved
person
must
initiate contact with a Counselor within
45 days of the date of the matter alleged
to be discriminatory or, in the case of
personnel action, within 45 days of the
effective date of the action.
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forty-five-day time limit was subject to equitable tolling, in
order “‘[t]o qualify for [equitable tolling], a complainant must
allege and prove, at the least, not only that he had no reason to
be aware of his employer’s improper motivation when the putative
violation occurred, but also that the employer actively misled him
and that he relied on the (mis)conduct to his detriment.’”3

The

IRS claimed that, “[i]n light of Plaintiff’s letter dated April 9,
2010 -- before her separation -- in which she accused management of
creating a hostile work environment, Plaintiff cannot show that she
was unaware of the IRS’s alleged improper motivation.”4

The IRS

attached to its motion the April 9 letter from Ms. Bartlett, as
well as other documentation.

(2) The agency or the Commission
shall extend the 45–day time limit in
paragraph (a)(1) of this section when the
individual shows that he or she was not
notified of the time limits and was not
otherwise aware of them, that he or she
did not know and reasonably should not
have
been
[sic]
known
that
the
discriminatory matter or personnel action
occurred, that despite due diligence he
or she was prevented by circumstances
beyond his or her control from contacting
the counselor within the time limits, or
for other reasons considered sufficient
by the agency or the Commission.
3

R.9 at 3 (second alteration in original) (quoting Jensen v.
Frank, 912 F.2d 517, 521 (1st Cir. 1990)).
4

Id. at 3-4 (referencing R.9-1 at 4-5).
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Ms.
dismiss.

Bartlett

Page: 5

filed

an

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opposition

to

the

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motion

to

In it, she noted that, “[p]rior to her separation from

employment, [she] had sought to address the issue of what she
perceived as [the] failure of the defendant to grant employment
related benefits as it related to her medical condition.”5
continued:
sent

She

“On October 8, 2010[,] the plaintiff, through counsel,

correspondence

discriminated

to

against

the
her

EEOC
on

the

claiming
basis

the
of

defendant
her

had

handicap.”6

Ms. Bartlett argued that a court may waive or extend “time limits
for equitable reasons when a person is prevented from timely filing
because of illness or in other appropriate circumstances.”7

She

claimed that such circumstances were present in her case because:
(1) prior to her departure from the IRS, she had notified the IRS
“of the specifics of the dispute from her perspective”;8 (2) the
documents submitted in opposition to the motion, which set forth
her diagnosis with, and hospitalization for, severe depression,
“clearly established that [she] was significantly impaired by a
mental health issue during the relevant time period”;9 and (3) “she
was never notified of a 45 day time limit for commencing her

5

R.12 at 1.

6

Id. at 2.

7

Id.

8

Id. at 3.

9

Id. at 4.
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claim.”10

Attached

to

Page: 6

her

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opposition

were

several

Entry ID: 5813607

exhibits,

including an affidavit in which she stated that “[n]o one from the
defendant ever informed me that I only had forty-five (45) days to
file an employment discrimination claim,”11 and other documents
demonstrating that she had informed the IRS of the nature of her
complaint

and

that

she

had

been

undergoing

treatment

for

depression.12
With the court’s permission, the IRS filed a reply brief
in support of its motion to dismiss.

It noted first that

[a] mental disability may serve as the basis
for equitable tolling only if the plaintiff
was “‘[un]able to engage in rational thought
and deliberate decision making sufficient to
pursue [her] claim alone or through counsel.’”
Meléndez-Arroyo v. Cutler-Hammer de P.R. Co.,
273 F.3d 30, 37 (1st Cir. 2001) (alterations
by the First Circuit) (quoting Nunnally v.
MacCausland, 996 F.2d 1, 5 (1st Cir. 1993)).[13]
According to the IRS, the correspondence that Ms. Bartlett had
attached to her opposition clearly established that, at least as of
two weeks prior to her separation, “she was mentally competent; she
could read; she could write (indeed, quite eloquently); and she was

10

Id.

11

R.12-1 at 2.

12

In her opposition, Ms. Bartlett also argued that she had
“put the defendant on notice of the nature and substance of the
dispute” before the filing deadline had passed. R.12 at 3-4. She
does argue on appeal that these actions rendered her complaint
timely.
13

R.19 at 2 (second and third alterations in original).
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able to understand what had happened and the consequences of her
decision.”14

The IRS also addressed Ms. Bartlett’s claim that “she

was unaware of the 45-day deadline.”15 It stated: “The declaration
of

Damaris

Ouellette

attached

hereto

as

Exhibit

A,

however,

establishes that notices of the deadline were posted in Plaintiff’s
office since before 2010.

Therefore, Plaintiff had constructive,

if not actual, notice of the 45-day requirement.”16

Finally, the

IRS argued that, although it was aware, prior to her departure,
that

Ms.

Bartlett

believed

that

she

had

been

the

victim

of

discrimination, it had not been advised within the forty-five-day
window, as required by regulation, that she was going to pursue
legal remedies.
In an order issued on February 4, 2013, the district
court granted the IRS’s motion to dismiss. The court observed that
Ms. Bartlett had “admit[ted] that she failed to contact an EEO
counselor within the mandated 45 days,” and, therefore, her claim
was barred unless equitable tolling applied.17

The court then

evaluated the four grounds on which Ms. Bartlett had argued that
the limitations period applicable to her claim should be equitably
tolled.

First, the court noted that Ms. Bartlett had not alleged

14

Id.

15

Id. at 4.

16

Id.

17

R.25 at 3.
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facts “show[ing] that her mental illness was so severe that she was
unable to engage in the rational thought process and deliberate
decision making necessary to pursue legal remedies in a timely
fashion.”18

Additionally,

the

district

court

rejected

Ms.

Bartlett’s contention that the time should be tolled because the
IRS failed to inform her of the forty-five-day contact period. The
court observed that Ms. Bartlett had not pointed to affirmative
misconduct on behalf of the IRS, nor had she alleged that the IRS
failed to post the required EEO information--actions that might
have warranted equitable tolling. Finally, the court held that the
fact that the IRS was on notice of her potential claims did not
toll the statute of limitations:

“Counsel cites no authority to

suggest that the 45-day contact period is excused when defendant is
previously put on notice of the nature of an employee’s claim.”19
Because Ms. Bartlett had not demonstrated that equitable
tolling of the administrative filing requirement was warranted, the
district court dismissed Ms. Bartlett’s complaint.
timely appealed.

18

Id. at 4.

19

Id. at 5.
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Ms. Bartlett

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II
DISCUSSION
A.

Requirement of Administrative Exhaustion
Before we turn to the outcome-determinative question--

whether the district court properly dismissed Ms. Bartlett’s action
on the ground that the forty-five-day limitation set by regulation
for commencing administrative review of her claim was not tolled-we must place that question in proper analytical and practical
context by addressing an antecedent issue: whether Ms. Bartlett was
required to exhaust administrative remedies prior to filing an
action

under

the

Rehabilitation

Act.20

This

question

is

“antecedent” to the tolling issue because the tolling of an
administrative filing requirement only becomes an issue if the
plaintiff must exhaust administrative remedies before proceeding

20

Ms. Bartlett alleged in her complaint that the IRS’s
actions violated the Rehabilitation Act and the ADA. See R.1 at 2
(“The acts and omissions of the defendant as described above[]
constitute discrimination on the basis of handicap, in violation of
29 U.S.C. Section 701, et seq. and 42 U.S.C. Section 12101, et
seq.”). However, the United States is explicitly excluded from the
ADA’s definition of “employer,” 42 U.S.C. § 12111(5)(B)(i), and,
consequently, as a federal employee, Ms. Bartlett only may proceed
under the Rehabilitation Act. See Field v. Napolitano, 663 F.3d
505, 510 n.6 (1st Cir. 2011).
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with a Rehabilitation Act claim.21

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This fundamental issue remains

an open question in this circuit.
Whether, or, more appropriately, under what circumstances, a
plaintiff must exhaust administrative remedies before filing an
action

under

the

Rehabilitation

Act

presents

a

statutory

interpretation question that is grounded in the manner in which
Congress

provided

for

Rehabilitation Act.

a

private

cause

of

action

under

the

The Rehabilitation Act was enacted in 1973,

and among its original provisions was a requirement that federal
agencies

adopt

affirmative

action

plans

for

handicapped

individuals. 29 U.S.C. § 791(b) (often referred to in the case law
as section 501 of the

Rehabilitation Act).22

Another provision,

21

Indeed, we have previously determined that, where the
requirement applies, “a plaintiff’s unexcused failure to exhaust
administrative remedies effectively bars the courthouse door.”
Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005).
One of
exhaustion’s “key components”--and the one with which we must
ultimately grapple--is “timely” compliance with procedural
requirements. See id.
22

29 U.S.C. § 791(b) provides:
(b) Federal agencies;
program plans

affirmative

action

Each
department,
agency,
and
instrumentality (including the United States
Postal Service and the Postal Regulatory
Commission) in the executive branch and the
Smithsonian Institution shall, within one
hundred and eighty days after September 26,
1973, submit to the Commission and to the
Committee an affirmative action program plan
for the hiring, placement, and advancement of
individuals
with
disabilities
in
such
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29 U.S.C. § 794(a) (often referred to in the case law as section
504

of

the

Rehabilitation

Act),23

prohibited

federally

funded

department,
agency,
instrumentality,
or
Institution.
Such plan shall include a
description of the extent to which and methods
whereby the special needs of employees who are
individuals with disabilities are being met.
Such plan shall be updated annually, and shall
be reviewed annually and approved by the
Commission, if the Commission determines,
after consultation with the Committee, that
such plan provides sufficient assurances,
procedures and commitments to provide adequate
hiring,
placement,
and
advancement
opportunities
for
individuals
with
disabilities.
23

29 U.S.C. § 794 provides in relevant part:
(a)

Promulgation of rules and regulations

No otherwise qualified individual with a
disability in the United States, as defined in
section 705(20) of this title, shall, solely
by reason of her or his disability, be
excluded from the participation in, be denied
the
benefits
of,
or
be
subjected
to
discrimination under any program or activity
receiving Federal financial assistance or
under any program or activity conducted by any
Executive agency or by the United States
Postal Service. The head of each such agency
shall promulgate such regulations as may be
necessary to carry out the amendments to this
section
made
by
the
Rehabilitation,
Comprehensive Services, and Developmental
Disabilities Act of 1978. Copies of any
proposed regulation shall be submitted to
appropriate authorizing committees of the
Congress, and such regulation may take effect
no earlier than the thirtieth day after the
date on which such regulation is so submitted
to such committees.
29 U.S.C. § 794(a) (emphasis added).
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programs or activities from excluding handicapped individuals from
participating in the program, or denying benefits to handicapped
individuals, “solely by reason of her or his disability.”

The

statute did not provide a private right of redress for violation of
either section.

Nevertheless, “all courts that considered the

issue found that section 504 established a private cause of action
for handicapped persons subjected to discrimination by recipients
of federal funds”; however, “a private cause of action founded on
handicap discrimination was not recognized upon section 501 as
against a federal government employer.”

Prewitt v. U.S. Postal

Serv., 662 F.2d 292, 302 (5th Cir. 1981).
Congress remedied this omission in 1978.

As the Third

Circuit noted in Spence v. Straw, 54 F.3d 196, 199 (3d Cir. 1995),
however, it did so in a “less than artful manner,” by adopting
overlapping amendments from the House and the Senate.

“The

Senate’s contribution focused on provision of a new section in the
Rehabilitation Act--section 505, codified at 29 U.S.C. § 794a.”
Id.

The new section provided that, with respect to 29 U.S.C. § 791

governing federal employers, “[t]he remedies, procedures, and
rights set forth in [Title VII] of the Civil Rights Act of
1964 . . . shall be available” to any aggrieved employee or

the highlighted language, and what follows, was added by amendment
in 1978.
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applicant for employment.

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29 U.S.C. § 794a(a)(1).24

Entry ID: 5813607

The Senate

also codified the cause of action--already recognized by most
courts--for those aggrieved by providers and recipients of federal
assistance.

With

respect

to

those

claims,

“[t]he

remedies,

procedures, and rights set forth in [T]itle VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d et seq.,” were available to
aggrieved parties.

24

29 U.S.C. § 794a(a)(2).25

Section 794a(a)(1) of Title 29 provides:
(a)(1) The remedies, procedures, and
rights set forth in section 717 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-16),
including the application of sections 706(f)
through 706(k) (42 U.S.C. 2000e-5(f) through
(k)) (and the application of section 706(e)(3)
(42 U.S.C. 2000e-5(e)(3)) to claims of
discrimination in compensation), shall be
available, with respect to any complaint under
section 791 of this title, to any employee or
applicant for employment aggrieved by the
final disposition of such complaint, or by the
failure to take final action on such
complaint. In fashioning an equitable or
affirmative action remedy under such section,
a
court
may
take
into
account
the
reasonableness of the cost of any necessary
work place accommodation, and the availability
of alternatives therefor or other appropriate
relief in order to achieve an equitable and
appropriate remedy.

25

Section 794a(a)(2) of Title 29 provides:
The remedies, procedures, and rights set forth
in title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d et seq.) (and in subsection
(e)(3) of section 706 of such Act (42 U.S.C.
2000e-5), applied to claims of discrimination
in compensation) shall be available to any
person aggrieved by any act or failure to act
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The House, however, took a different approach.

Because

courts had recognized a private cause of action under § 794
(section

504

“‘extended

of

the

section

discrimination

to

Rehabilitation
504’s

“any

Act),

proscription

program

or

the

House

against

activity

merely
handicap

conducted

by

an

Executive agency or by the United States Postal Service.”’”
Spence, 54 F.3d at 199 (quoting Prewitt, 662 F.2d at 302).26

As

noted by the Fifth Circuit, “[t]he joint House-Senate conference
committee could have chosen to eliminate the partial overlap
between the two provisions, but instead the conference committee,
and

subsequently

Congress

as

a

provisions, despite the overlap.”

whole,

chose

to

pass

Prewitt, 662 F.2d at 304.

both
In

taking this action, the Fifth Circuit concluded:
Congress clearly recognized both in section
501 and in section 504 that individuals now
have a private cause of action to obtain
relief for handicap discrimination on the part
of the federal government and its agencies.
The amendments to section 504 were simply the
House’s answer to the same problem that the
Senate saw fit to resolve by strengthening
section 501.
Id.
The manner in which Congress amended the Rehabilitation
Act,

however,

created

an

“apparently

incongruent

enforcement

by any recipient of Federal assistance or
Federal provider of such assistance under
section 794 of this title.
26

See supra note 23.
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scheme.”

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Spence, 54 F.3d at 199.

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According to the terms of the

amended Rehabilitation Act, federal agencies could “be sued for
violation of either section 501 or 504 of the Act.”
federal

employee

Rehabilitation

sues

Act),

processes apply.

under

Title

§

VII’s

791

(section

remedies

and

501

Id.
of

If a
the

administrative

“Thus, a party is barred from suing a federal

agency for violation of section 501 [29 U.S.C. § 791] if he or she
has failed to exhaust administrative remedies under Title VII.”
Id. at 200.

However, an aggrieved federal employee also may sue

for a violation of § 794, which may be redressed through the
remedies and procedures set forth in Title VI of the Civil Rights
Act, for which exhaustion is not required.

See id.27

27

The Seventh Circuit addressed this incongruity in
McGuinness v. United States Postal Service, 744 F.2d 1318 (7th Cir.
1984). It stated that the plaintiff could not “avoid dismissal of
the suit as premature by arguing that it is really a suit not under
section 505(a)(1) of the Rehabilitation Act but under section 504,
29 U.S.C. § 794.” Id. at 1321. The court recognized that “section
504 ha[d] been held applicable to employment discrimination as well
as other forms of discrimination against the handicapped by
recipients of federal money.” Id. Nevertheless, it observed that
it was “unlikely that Congress, having specifically addressed
employment of the handicapped by federal agencies (as distinct from
employment by recipients, themselves nonfederal, of federal money)
in section 501, would have done so again a few sections later in
section 504.” Id.
According to our colleagues in the Seventh
Circuit,
it would make no sense for Congress to provide
(and in the very same section--505(a))
different sets of remedies, having different
exhaustion requirements, for the same wrong
committed by the same employer; and there is
no indication that Congress wanted to do
this--as of course it could do regardless of
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Although

courts

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have

Date Filed: 04/07/2014

differed

slightly

Entry ID: 5813607

in

their

reasoning, every circuit court to address the issue directly has
determined that a federal employee who brings an action under the
Rehabilitation Act must exhaust administrative remedies before
proceeding to court.

See Spence, 54 F.3d at 201 (collecting

cases).28

what might seem sensible to us--when it added
section 505 in 1978.
Id.
That court went on to determine that it did not have to
address whether federal employees could bring a cause of action
under only § 791 or under both § 791 and § 794, because, in either
situation, it was Congress’s intent that federal employees exhaust
the administrative remedies contained in Title VII. Accord Boyd v.
U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985) (“[W]e agree
with the Seventh Circuit that ‘it is unlikely that Congress, having
specifically addressed employment of the handicapped by federal
agencies (as distinct from employment by recipients, themselves
nonfederal, of federal money) in section 501, would have done so
again a few sections later in section 504.’” (quoting McGuinness,
744 F.2d at 1321)).
28

See also James Lockhart, Annotation, To What Extent Are
Federal Entities Subject to Suit under § 504(a) of the
Rehabilitation Act (29 U.S.C.A. § 794(a)), Which Prohibits any
Program or Activity Conducted by any Executive Agency or the Postal
Service from Discriminating on Basis of Disability, 146 A.L.R. Fed.
319 § 5 (1998). Among the authorities cited are: Doe v. Garrett,
903 F.2d 1455, 1461 (11th Cir. 1990) (holding that “private actions
against federal government employers under the Act, whether brought
under section 791 or 794, must satisfy the requirement of
exhaustion of administrative remedies in the manner prescribed by
section [794a(a)(1) ] and thus by Title VII” (alteration in
original) (internal quotation marks omitted)); Morgan v. United
States Postal Service, 798 F.2d 1162, 1164-65 (8th Cir. 1986)
(requiring exhaustion of administrative remedies for federal
employee even when he proceeds under § 504); Boyd, 752 F.2d at 413
(following McGuinness and holding “that section 501 is the
exclusive remedy for discrimination in employment by the Postal
Service on the basis of handicap”); Smith v. United States Postal
Service, 742 F.2d 257, 262 (6th Cir. 1984) (holding that the 1978
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Although district courts within our own circuit similarly
have held that exhaustion is required for federal employees,29 and,
in at least one case, we have suggested the same,30 we never have
addressed directly whether a federal employee seeking redress under
the Rehabilitation Act is limited to proceeding under § 791
(section 501 of the Rehabilitation Act) and, if not, whether she
must nonetheless exhaust administrative remedies.
We noted this “procedural wrinkle” in Leary v. Dalton, 58
F.3d 748, 751 (1st Cir. 1995), in which a federal employee had
brought a Rehabilitation Act claim under 29 U.S.C. § 794 (section
504 of the Rehabilitation Act).

We stated:

Although the district court decided this case
under § 504 of the Rehabilitation Act, 29
U.S.C.
§
794
(prohibiting
disability
discrimination by non-federal recipients of
federal funds), Leary actually invoked § 501
of the Act, 29 U.S.C. § 791, in his complaint.

Amendments to the Rehabilitation Act “mandate exhaustion as a
prerequisite to such claims, regardless of whether they are brought
under section 501 or section 504”); and Prewitt v. United States
Postal Service, 662 F.2d 292, 304 (5th Cir. 1981) (“[I]n order to
give effect to both the House and the Senate 1978 amendments
finally enacted, we must read the exhaustion of administrative
remedies requirement of section 501 into the private remedy
recognized by both section 501 and section 504 for federal
government handicap discrimination.”).
29

See Clark v. U.S. Postal Serv., 592 F. Supp. 631, 632 (D.
Mass. 1984).
30

See Stoll v. Principi, 449 F.3d 263, 266 (1st Cir. 2006)
(“The lodging of either a formal appeal with the Board or a formal
complaint with the agency demarcates the point of no return. From
that point forward, the complainant must exhaust her claim in the
chosen forum.” (citation omitted)).
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Section 501(b) imposes an affirmative duty on
every “department, agency, and instrumentality
. . . in the executive branch” of the federal
government
to
provide
adequate
hiring,
placement, and advancement opportunities for
individuals with disabilities. Some circuits
view § 501, accordingly, as the exclusive
right of action for federal employees who
suffer disability discrimination in the course
of their direct employment. Other circuits,
ours included, have permitted such claims to
be brought under both § 501 and § 504.
The differences between the two sections
may be significant in some cases (though not
this one, as we shall explain). Not only is
it unclear whether the right of action under
§ 504 overlaps with that in § 501, it is also
unclear, in light of recent amendments to the
Rehabilitation Act, whether the two sections
require the same showing of causation. . . .
We therefore regard the applicability of
§ 504 and its sole causation test in this
federal employment suit as an open question;
but one that we need not reach here. Leary
agrees on appeal that his claim arises under
§ 504, and that he bears the burden of
demonstrating that he was terminated “solely
by reason of” his disability.
Leary, 58 F.3d at 751-52 (first alteration in original) (emphasis
added)

(citations

omitted).31

Although

31

Leary

discussed

the

In one recent case in which the issue of exhaustion was not
raised, we stated in passing that the Rehabilitation Act does not
require exhaustion. See Farris v. Shinseki, 660 F.3d 557, 562 n.5
(1st Cir. 2011). Tracing back that statement to its origin (Farris
relies on Prescott v. Higgins, 538 F.3d 32, 44 (1st Cir. 2008),
which in turn cites Brennan v. King, 139 F.3d 258, 268 n.12 (1st
Cir. 1998)), however, it is clear that the statement concerns a
claim brought by a non-federal employee under § 794 (section 504 of
the Rehabilitation Act), not § 791 (section 501 of the
Rehabilitation Act). See Brennan, 139 F.3d at 268 n.12 (addressing
claims brought by university professor and stating that “[t]he
Rehabilitation Act derives its procedural requirements from Title
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difference in causation standards, it did not discuss the disparity
in

exhaustion

requirements;

indeed,

it

made

no

mention

of

exhaustion at all.
The court’s methodology in Leary counsels that we need
not resolve, in the present case, whether federal employees,
proceeding exclusively under § 794, must exhaust administrative
remedies.

Here, when the Government raised in the district court

that

Bartlett

Ms.

had

not

complied

with

the

forty-five-day

administrative exhaustion requirement, she never asserted that she
was

exempt

from

the

exhaustion

requirement

because

it

was

inapplicable to the provision on which she was resting her claim.
At the very least, by failing to raise the issue in the district
court, she has forfeited any argument that exhaustion of remedies
under the Rehabilitation Act was not required in this case.

See

Farris v. Shinseki, 660 F.3d 557, 562 n.5 (1st Cir. 2011) (forgoing
a determination of whether the plaintiff was required to exhaust
administrative remedies because the issue had not been raised in
the district court or briefed on appeal).

B.

Equitable Tolling
The central issue raised by Ms. Bartlett’s appeal is

whether the district court should have equitably tolled the forty-

VI, which does not have an exhaustion requirement”).
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five-day time limit, set by regulation,32 within which she was
required to commence the administrative complaint procedure for her
allegedly discriminatory constructive discharge.

In the context

of litigation initiated by federal employees, we have noted that
“administrative
sovereign

exhaustion

immunity’”

‘is

and,

a

therefore,

to

the

“‘must

waiver

be

of

strictly

Id. at 563 (quoting Irwin v. Dep’t of Veterans

construed.’”

Affairs, 498 U.S. 89, 94 (1990)).
circumstances”
deadline.

condition

that

equitable

It is “[o]nly in exceptional

tolling

will

extend

Id. (internal quotation marks omitted).

a

filing

To this end,

“the heavy burden” of “prov[ing] entitlement to equitable relief
lies with the complainant.”

Id.

Generally speaking, “[e]quitable tolling suspends the
running of the limitations period ‘if the plaintiff, in the
exercise

of

reasonable

diligence,

could

information essential to [his claim].’”
Orthobiologics

LLC,

661

F.3d

675,

not

have

discovered

Ortega Candelaria v.

679-80

(1st

Cir.

2011)

(alteration in original) (quoting Barreto-Barreto v. United States,
551 F.3d 95, 100 (1st Cir. 2008)).33

32

In making a determination

See supra note 2.

33

We have observed that “[e]quitable tolling casts a wider
net than [the related doctrine of] equitable estoppel.” Ortega
Candelaria v. Orthobiologics LLC, 661 F.3d 675, 679 (1st Cir. 2011)
(internal quotation marks omitted). In contrast to equitable
tolling,
[e]quitable estoppel applies when a plaintiff who
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whether equitable tolling should apply in the context of a claim
brought under the Age Discrimination in Employment Act (“ADEA”), we
have instructed that,
where a plaintiff is claiming excusable
ignorance of the filing deadline, we believe a
court should initially determine whether the
plaintiff had either actual or constructive
knowledge of his rights under the ADEA.
Actual knowledge occurs where an employee
either learns or is told of his ADEA rights,
even if he becomes only generally aware of the
fact that there is a statute outlawing age
discrimination
and
providing
relief
therefor. . . .
Constructive knowledge, on
the other hand, is “attributed” to an employee
in situations where he has retained an
attorney, or where an employer has fulfilled
his statutory duty by conspicuously posting
the official EEOC notices that are designed to
inform employees of their ADEA rights. . . .
If the court finds that the plaintiff
knew, actually or constructively, of his ADEA
rights, ordinarily there could be no equitable
tolling based on excusable ignorance.
Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 753 (1st Cir. 1988)
(emphasis added) (citations omitted).

knows of his cause of action reasonably relies on the
defendant’s conduct or statements in failing to bring
suit. In order to demonstrate entitlement to equitable
estoppel, a plaintiff must show evidence of the
defendant’s improper purpose or his constructive
knowledge of the deceptive nature of his conduct . . . in
the form of some definite, unequivocal behavior . . .
fairly calculated to mask the truth or to lull an
unsuspecting person into a false sense of security.
Id. (second and third alterations in original) (citation omitted)
(internal quotation marks omitted).
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If, however, the plaintiff did not have actual knowledge,
or if the employer failed to post the required notices, then “[t]he
court should also assess any countervailing equities against the
plaintiff.”

Id. (emphasis added).

Specifically, the court should

ask the following questions:
[D]id he diligently pursue his claim, was his
ignorance of his rights reasonable under the
circumstances, and would allowing equitable
tolling still fulfill the basic purposes
behind the limited filing period--namely,
providing the government an opportunity to
conciliate while the complaint is fresh and
giving early notice to the employer of
possible litigation.
Id. (citations omitted).

“Finally, even if the court finds that

the above factors call for equitable tolling, it must then take
account of the degree to which delay prejudices the defendant.”
Id.

1.
Before the district court, Ms. Bartlett maintained that
she did not have actual knowledge of the forty-five-day deadline.
Her argument was supported by an affidavit, in which she states:
“No one from the defendant ever informed me that I only had fortyfive (45) days to file an employment discrimination claim.”34

As

noted above, however, ordinarily there cannot be equitable tolling
based on excusable ignorance if the plaintiff had either actual or

34

R.12-1 at 2.
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constructive knowledge of her statutory rights.
753.

Although

Ms.

Bartlett

alleged

that

Entry ID: 5813607

Kale, 861 F.2d at

she

lacked

actual

knowledge of the filing deadline--and supported that allegation by
affidavit--she did not challenge the IRS’s assertion, supported by
the declaration of Damaris Ouellette, that it had complied with the
posting requirements.35

Ms. Bartlett, therefore, has not carried

her burden of showing a lack of constructive knowledge of the
filing requirements.
In her brief before this court, Ms. Bartlett does not
contest

that

the

IRS’s

postings

sufficed

to

constructive knowledge of the filing deadlines.

establish

her

Instead, she

maintains that the district court erred when it decided the issue
of notice on a motion to dismiss.

She argues that we have held

that the issue of constructive notice is one of fact that cannot be
decided on a motion to dismiss.

She relies on Mercado v. Ritz-

Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41 (1st Cir. 2005),
to support her position.
In Mercado, employees filed Title VII administrative
charges after the three-hundred-day deadline had passed, and their

35

Federal agencies, as part of their implementation of
“affirmative program[s] to promote equal opportunity and to
identify and eliminate discriminatory practices and policies,” must
“[m]ake written materials available to all employees and applicants
informing them of the variety of equal employment opportunity
programs and administrative and judicial remedial procedures
available to them and prominently post such written materials in
all personnel and EEO offices and throughout the workplace.” 29
C.F.R. § 1614.102(a) & (b)(5).
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employer, Ritz-Carlton, moved to dismiss on the ground that the
complaints were untimely.

In response, the plaintiffs “claimed

that Ritz-Carlton was barred from asserting timeliness as a defense
because the hotel [had] failed to comply with EEOC regulations
requiring employers to post notices advising employees of their
legal rights relating to employment discrimination.”

Id. at 44.

We held that “[h]ere, where appellants have asserted that no
informational notices were posted and that they had no knowledge of
their legal rights until informed by their attorney, they have met
the threshold requirements for avoiding dismissal of their Title
VII suit.”

Id. at 48 (footnote omitted).
Ms.

Bartlett

maintains

that

Mercado

stands

for

the

proposition that, “where the issue of notice is disputed[,] a
plaintiff
dismissal.”

has

met

the

threshold

Appellant’s Br. 13.

happened here.

requirements

for

avoiding

We agree, but that is not what

Ms. Bartlett never has alleged that the IRS failed

to post the required notices.

Instead, she asserts that an IRS

employee never affirmatively informed her of the filing deadline.36
This assertion contests the issue of actual knowledge, but not
constructive knowledge.37

36

See R.12-1 at 2.

37

We are unaware, however, of any regulation, statute or case
law that imposes such an obligation on Government agencies, and
Ms. Bartlett has pointed to none.
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Ms. Bartlett also suggests, without explicitly arguing,
that the district court’s ruling was more akin to summary judgment
than to dismissal for failure to state a claim.
Br. 14-15.

See Appellant’s

Under the Federal Rules of Civil Procedure, a district

court must advise the parties if, in ruling on a motion to dismiss,
it is considering materials outside the pleadings:
If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to
and not excluded by the court, the motion must
be treated as one for summary judgment under
Rule 56.
All parties must be given a
reasonable opportunity to present all the
material that is pertinent to the motion.
Fed. R. Civ. P. 12(d).

Here, the district court did not formally

convert the IRS’s motion to dismiss into a motion for summary
judgment, despite the fact that the motion was accompanied by other
materials.
The district court’s failure to convert the motion,
however, does not require reversal.

We have made it clear that we

“do[] not mechanistically enforce the requirement of express notice
of a district court’s intention to convert a Rule 12(b)(6) motion
into a motion for summary judgment.”

Boateng v. InterAmerican

Univ., Inc., 210 F.3d 56, 60 (1st Cir. 2000).

“Instead, we treat

any error in failing to give express notice as harmless when the
opponent has received the affidavit and materials, has had an
opportunity to respond to them, and has not controverted their
accuracy.”

Id.

(internal

quotation

-25-

marks

omitted).

Here,

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Ms. Bartlett not only responded to the IRS’s motion to dismiss, but
attached several documents to her response.

Furthermore, in her

briefing on appeal, Ms. Bartlett does not argue that she was denied
an opportunity to respond, nor does she suggest that there are
other affidavits or documents that she would have submitted to the
district court if she had been given formal notice that the court
was converting the IRS’s motion to a motion for summary judgment.
Consequently, the failure by the district court to formally convert
the motion to dismiss into a motion for summary judgment was
harmless.38

2.
Ms. Bartlett also maintains that the filing deadline
should be tolled because she was suffering from mental illness. We
have recognized that mental illness may toll the time to file an
administrative claim of discrimination, but only if the plaintiff
has “show[n] that the mental disability was so severe that the
plaintiff

was

‘[un]able

to

engage

in

rational

thought

and

deliberate decision making sufficient to pursue [her] claim alone
or through counsel.’”

Mélendez-Arroyo v. Cutler Hammer de P.R.

Co., 273 F.3d 30, 37 (1st Cir. 2001) (second and third alterations
38

Because Ms. Bartlett had constructive notice of the filing
requirement, we do not have to engage in the second step of the
equitable tolling analysis: “assess[ing] any countervailing
equities against the plaintiff.” Kale v. Combined Ins. Co. of Am.,
861 F.2d 746, 753 (1st Cir. 1988).
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in original) (quoting Nunnally v. MacCausland, 996 F.2d 1, 5 (1st
Cir. 1993)).

In this case, the district court applied this

standard and determined that equitable tolling was not appropriate
because Ms. Bartlett had not argued that her illness had resulted
in the necessary level of incapacity.39
On appeal, Ms. Bartlett does not maintain that her
illness rendered her unable to engage in rational thought and
deliberate decision making.

Indeed, she explicitly alleges in her

Complaint that she “performed her duties and responsibilities
competently and her disability did not otherwise interfere with her
ability to perform her job.”

R.1 at 2.

Nowhere does Ms. Bartlett

allege that her mental condition--which she says did not affect her
job performance--worsened after her separation from employment.
She maintains only that the district court applied the incorrect
legal standard in determining whether the time limit should be
tolled based on mental illness. She argues that our case law “does
not stand for the proposition that in an equitable tolling analysis
a mental illness must be so severe as to deprive the sufferer of
the rational thought necessary to protect their legal rights.”
Appellant’s Br. 14.

Rather, she claims that the standard we

articulated in Lopez v. Citibank, 808 F.2d 905 (1st Cir. 1987)--a
case-law antecedent to Mélendez-Arroyo--“is a very narrow one” and

39

See R.25 at 4 (“Here, plaintiff does not contend that her
mental illness was so debilitating that she was unable to meet the
45-day deadline.”).
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the

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that

were

before

Entry ID: 5813607

the

court.

Appellant’s Br. 14.
We do not believe that the district court’s determination
runs afoul of Lopez.

In Lopez, the plaintiff filed his Title VII

action eighteen months after he had been notified that the EEOC had
dismissed
ninety-day

his

charge,

statute

of

approximately
limitations

fifteen
had

run.

months
The

after

the

plaintiff

maintained, however, that equitable tolling should be applied
because “he was mentally incapacitated during much or all of the
relevant eighteen-month period.”

Lopez, 808 F.2d at 906.

In

evaluating this claim, we noted that “there is no absolute rule
that would require tolling whenever there is mental disability.”
Id.

We observed that “[t]he federal courts have taken a uniformly

narrow view of equitable exceptions to Title VII limitations
periods.” Id. (internal quotation marks omitted).40 We concluded:

40

This is still the case. See, e.g., Wilkie v. Dep’t of
Health & Human Servs., 638 F.3d 944, 950 (8th Cir. 2011) (noting
that “the standard for tolling due to mental illness is a high one”
and reiterating that “a plaintiff seeking tolling on the ground of
mental incapacity must come forward with evidence that a mental
condition prevented him from understanding and managing his affairs
generally and from complying with the deadline he seeks to toll”
(internal quotation marks omitted)); Boos v. Runyon, 201 F.3d 178,
185 (2d Cir. 2000) (holding that a plaintiff’s “conclusory and
vague claim, without a particularized description of how her
condition adversely affected her capacity to function generally or
in relationship to the pursuit of her rights, is manifestly
insufficient to justify any further inquiry into tolling”); Miller
v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (refusing “to depart
from the traditional rule that mental illness tolls a statute of
limitations only if the illness in fact prevents the sufferer from
managing his affairs and thus from understanding his legal rights
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Without an absolute rule in his favor,
appellant cannot prevail here. Appellant was
represented by counsel during his period of
illness, and counsel pursued appellant’s
discrimination claim before the EEOC. It thus
seems unlikely that appellant’s illness
deprived his counsel of the knowledge or
consent needed to file a court complaint; it
is more likely that counsel knew plaintiff
wished to pursue his legal remedies and knew
(or should have known) about the relevant
limitations period.
And, appellant has
alleged no specific facts that would show the
contrary. In such circumstances, we believe a
federal court should assume that the mental
illness was not of a sort that makes it
equitable to toll the statute--at least absent
a strong reason for believing the contrary.
Id. at 907.
We agree with Ms. Bartlett that, in Lopez, the fact that
the plaintiff had retained counsel factored into our analysis.
However, nothing in Lopez suggests a more relaxed standard for
assessing mental incapacity in the context of equitable tolling.
See id. at 906.

Morever, since Lopez, we have said:

Both cases, Lopez and Nunnally, said that
equitable tolling was available in principle
but only if the plaintiff showed that the
mental disability was so severe that the
plaintiff was “[un]able to engage in rational
thought
and
deliberate
decision
making
sufficient to pursue [her] claim alone or
through counsel.” [Nunnally,] 996 F.2d at 5.
Lopez rejected the claim because the plaintiff
had been represented by counsel, 808 F.2d at
907; Nunnally thought a hearing required where
the plaintiff showed that she was “nearly a
street person” with a probable diagnosis of
paranoid schizophrenia, 996 F.2d at 6.

and acting upon them”).
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Mélendez-Arroyo, 273 F.3d at 37 (emphasis added).

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In Mélendez-

Arroyo, we made it “clear that merely to establish a diagnosis such
as severe depression is not enough.”

Id. at 38.

Instead, a

plaintiff must show that she is, because of her disability,
“[un]able to engage in rational thought and deliberate decision
making sufficient to pursue [her] claim alone or through counsel.”
Id. at 37 (alterations in original) (quoting Nunnally, 996 F.2d at
5); see also Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)
(stating “the traditional rule [is] that mental illness tolls a
statute of limitations only if the illness in fact prevents the
sufferer from managing his affairs and thus from understanding his
legal rights and acting upon them”).
The documentation that Ms. Bartlett submitted to the
district court fell far short of what is necessary to “raise[] a
factual dispute about her capacity that could not be resolved
solely on the papers.”
does

any

of

her

Id. at 38.

evidence

point

Ms. Bartlett never averred, nor
to

the

conclusion,

that

her

depression deprived her of the ability to engage in rational
thought or deliberate decision making.

She maintains only that

“she was experiencing a severe mental illness,” Appellant’s Br. 17,
but, under our case law, “establish[ing] a diagnosis such as severe
depression is not enough,” Mélendez-Arroyo, 273 F.3d at 38.
Rather, the alleged severe mental illness must be marked by a
significantly reduced capacity to make rational decisions. On

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appeal Ms. Bartlett does not argue that she could come forward with
evidence that her depression rendered her unable to “understand[]
h[er] legal rights and act[] upon them,” Miller, 77 F.3d at 191,
but was deprived of the opportunity to do so.41
Because

Ms.

Bartlett

has

not

alleged

that

she

was

mentally incapacitated during the forty-five-day filing period and
has

not

argued

that

she

could

come

forward

with

evidence

establishing such incapacity, she has not made the necessary
showing to establish that equitable tolling should be applied to
save her untimely administrative action.

Conclusion
For the reasons set forth above, we affirm the judgment
of the district court.

AFFIRMED

41

We do not imply, of course, that severe depression never
could meet that standard. We simply observe that no such showing
has been made here.
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